The following was published in UChicago News on August 12, 2021.
By Becky Beaupre Gillespie
As Prof. Martha C. Nussbaum watched the #MeToo movement emerge in a swirl of impassioned testimony several years ago, she was struck not only by the swell of attention being paid to stories of sexual violence and harassment but by the continued dearth of institutional accountability and the onset of “callout culture,” the increasingly common ritual of publicly shaming the accused.
The #MeToo revolution was important and long overdue, she would later write, but it wasn’t yet producing full justice. Nussbaum, the University of Chicago’s Ernst Freund Distinguished Service Professor of Law and Ethics, was particularly dismayed by the ways in which three areas of employment—the federal judiciary, performing arts, and college sports—created “sweet spots” for abuse by elevating and protecting powerful men.
What the movement needed, she concluded, was a clearer and deeper understanding of the forces at play: the pride and greed that lead men to objectify women (and sometimes other men), the ways in which criminal and civil laws have evolved (and could continue evolve) to better address sexual assault and sexual harassment, and the dangers of allowing vengeful desires to impede true justice and reconciliation.
Citadels of Pride
The result is Citadels of Pride: Sexual Assault, Accountability, and Reconciliation (W.W. Norton & Company), a new book in which Nussbaum examines the societal roots of sexual assault, offers a primer on the relevant laws and their history, and proposes reforms aimed at creating change in the three areas she identifies as the most recalcitrant.
“In some areas, despite #MeToo, powerful men remain above the law,” writes Nussbaum, who builds on earlier work examining anger, shame, disgust and more. “When men are shielded by long-lasting institutional structures that give them enormous power, they may continue to do wrong with impunity. These ‘citadels of pride’ insulate men who objectify and demean women from accountability.”
Nussbaum, who is appointed in both the Law School and the Department of Philosophy, introduces proposals that aim to remodel structures that protect abusers and fuel pride—a character trait she defines as habitually thinking of oneself above others. For instance, she suggests rethinking the supervision of judicial clerks, who are not only at the mercy of their judges during their clerkships, but typically rely on them for references, mentoring, and networking well into their careers.
The federal judiciary, Nussbaum explains, has several features that protect the powerful and can allow pride to flourish: lifetime appointments, the rarity of the honor, enormous influence that is exercised largely away from the public eye, and the absence of regular critical exchange. (The U.S. Court of Appeals for the Seventh Circuit is an exception on the last point, she adds. The Chicago-based court contains several academics, including some who teach at the Law School. Their culture of collegiality and critique could be a model for the federal judiciary as a whole, Nussbaum writes.)
For the performing arts—where stars are often treated as irreplaceable, workplaces are not always well-defined, and constant auditioning can make artists more susceptible to abuse—she proposes giving unions greater power to protect their members and discusses whether a system of tenure might reduce vulnerability.
And for college sports, she offers what may be her most controversial suggestion, calling for the elimination of Division I college football and basketball in favor of professionalized organizations similar to baseball’s minor leagues.
“Professional sports have their problems of sexual harassment and domestic abuse, but these problems can be solved in much the way that the arts can solve their problems: vigilance, tough unions, careful oversight by management, and respectful attention to voices of complaint,” Nussbaum explains. “In the world of Division I college sports, by contrast, there are such deep systemic problems in the whole setup—collective action problems and problems of external corporate influence—that the sexual and academic corruption that besets this entire world cannot be fixed. … The problem is structured so as to be unfixable.”
“In some areas, despite #MeToo, powerful men remain above the law.”
She proposes combining the system of minor leagues with “learning academies” for the players and allowing Division III sports to continue, noting that although “deep problems” persist at those schools, they are more likely to be fixable.
In all three “citadels of pride,” she calls for well-defined rules, established enforcement procedures, and explicit policies protecting whistleblowers—and emphasizes the importance of public engagement in demanding these changes.
“When bad behavior becomes a liability in the search for profit, the pride-greed nexus can be broken,” she argues.
Productive public engagement, of course, requires one to understand how power can lead to abuse and how the justice system might respond. Nussbaum works to equip her readers in several ways, including through case studies of figures such as Alex Kozinski, a former judge on the U.S. Court of Appeals for the Ninth Circuit; Spanish singer Plácido Domingo; and the football program at Florida State University—and, earlier in the book, by offering an account of the applicable legal history, including criminal legal reforms at the state level and the impact of Title VII and Title IX of the Civil Rights Act of 1964.
“[L]aw does its job well only when people understand it, and in America today people interested in justice for women do not always understand the relevant laws and background,” Nussbaum writes.
She also calls on the public to embrace reconciliation rather than retribution. Punishment has its place, she explains, but to be effective, it must be “law-based, fair, and nuanced, calibrated to the severity of the offense.”
“When bad behavior becomes a liability in the search for profit, the pride-greed nexus can be broken.”
“Our #MeToo movement has seen its share of cases in which punishment has not been nuanced or calibrated, in which mass shaming takes the place of procedural justice,” she writes. “It has also spawned narratives in which reconciliation is dismissed in favor of retributive triumphalism.”
The goal, she argues, should be to create a shared future—one that recognizes the equal human dignity of all people and features mutual respect for autonomy.
“At this time of justified denunciation and unremitting vigilance, feminists, I believe, should also, and above all, be people of love,” Nussbaum writes, referencing the type of love recommended by Martin Luther King, Jr., in which people don’t necessarily like their enemies, but see sources of goodness in them that could lead them, potentially, to join in the pursuit of good ideals.
“Just as women demand that their voices be heard, so must we resolve to hear one another in all our differences, and to hear the voices of men, both those who agree with us and those who do not, both those who have behaved well and those who have not, creating a dialogical culture that is also a culture of empathetic imagination. … Only that new freedom, and that love, can really create a just and lasting peace.”
—This story was first published by the University of Chicago Law School.